Citation Nr: 1302818 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-34 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the residuals of two broken toes of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to November 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the April 2009 rating decision, the RO, in pertinent part, denied a claim of service connection for a right foot condition (claimed as broken toes on right foot). The RO subsequently confirmed and continued that determination in the January 2010 rating decision. The Veteran's Notice of Disagreement (NOD), received at the RO in February 2010, was timely as to both rating decisions. The RO issued a Statement of the Case (SOC) in June August 2010. The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in August 2010. In March 2012, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting at the Board. A transcript of his testimony is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran maintains that he has a residual disability of his right foot, as a result of an in-service injury in 1978 involving fractures of two of his toes of the right foot. At his video conference in March 2012, the Veteran testified that he and a private were lifting heavy artillery shells while on maneuvers late one night, when the private accidentally dropped one of the shells directly on the Veteran's foot. The Veteran further testified that he was treated by medics in the field who taped his toes together for stability, using the big toe as the stabilizer. The medics gave him medication for pain and told him there was nothing more that could be done for broken toes. According to the Veteran's testimony, no x-rays of the right foot were taken at that time. The Veteran further testified that he tried to seek treatment for foot/toe pain right after service, but was turned away because of the character of his discharge, and he was unable to afford private treatment at that time. He testified that the discharge was subsequently upgraded in 1980, and that he sought VA treatment at that time. A review of the Veteran's service treatment records (STRs) reveal that in June 1978, the Veteran complained of two toes broken on the right foot. It was noted that the Veteran injured his toes two days prior. The assessment was possible fracture. The toes were supported with adhesive tape and the Veteran was returned to duty. Other STRs note that x-rays were taken of the Veteran's knees, but there is no indication that any x-rays were taken of the Veteran's right foot or toes during service. This evidence is evidence of an injury to the toes in service. Post-service evidence includes some VA treatment records, including an April 2009 x-ray study of the feet, which reveals osteoarthritis of the big toe, but the results do not show that arthritis exists in any other toes of the right foot. Also of record is a November 2009 examination report prepared by W.H., MD. In the examination report, Dr. H indicated that muscle strength was decreased in the right foot. X-rays taken on that date revealed no unusual findings; there was no evidence of a malunion fracture; however, there was possible thickening of the cortex on the proximal phalanx of the second and third digits, possibly suggestive of an old fracture. Additionally, a March 2010 record notes contracted digits at the second and third bilateral, with pain to the right foot; and, at the joints second "mpj" (metatarsalphalangeal joint) an old fracture fragment is noted at base of the proximal phalanx. The VA medical records further show that the Veteran underwent a right foot arthroplasty in September 2010 due to hammertoes of digits 2, 3, and 4 with exostectomy of the second proximal phalanx. At his video conference in March 2012, the Veteran testified that he continues to have pain in his right foot, and in particular, in the area of the toes. The above post-service evidence is evidence showing a current disability involving the right foot, and more specifically, the second, third, and fourth toes, including the possibility of an old fracture. Also of record is a November 2009 memorandum from F.T., MD., who treated the Veteran. Dr. T noted that the Veteran complained with pain in his right second and third toe. On physical examination, there was no swelling or bruising over the toe area, but there was a mild tenderness over the proximal part of both toes. Based on the Veteran's reported history of having an auxiliary shell dropped on his right foot in service in 1978 which has caused pain ever since, Dr. T opined that the Veteran's symptoms "might" be due to the in-service accident; or, "it might just be arthritis." Dr. T also stated, "I cannot assume that the injury in 1978 is the reason of the pain but at the same time it can be due to it so overall I feel like he has some arthritis in these two toes which can be related to that accident in 1978." This memorandum is competent evidence of a possible link between the Veteran's current disability of the right foot/toes and his in-service injury. The Veteran has not been afforded a VA examination; however, one is warranted pursuant to the duty to assist. See 38 C.F.R. § 3.159 (c)(4) (2012). Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not been afforded a VA examination with respect to this issue. The Veteran should be accorded a VA examination to address the etiology of any residuals of an injury in service to the toes of the right foot. Importantly, while the Veteran is competent to report that he has right foot/toe pain, and has had foot pain ever since the in-service toe injury, he is not necessarily competent to provide a competent medical opinion as to whether his current right foot/toe disability is related to an injury in service, as he is not shown to possess the medical expertise necessary to make this type of determination. Accordingly, a VA examination is necessary. Also, a review of the record notes that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA). Specifically, a December 2006 VA telephone contact note indicates that the Veteran is not employed and has no plans to return to work. According to the report, the Veteran recently received 100 percent disability. The SSA records, if they exist, are not in the claims file and are potentially relevant to the issue on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, on remand, the RO must attempt to obtain these records. Finally, because the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his foot/toe pain since discharge from service, if any, that have not already been associated with the claims file. In particular, the Veteran should provide, or authorize VA to obtain, any pertinent private records which are not already of record. 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran not already of record, particularly those dated from May 2011. 3. Request directly from the SSA complete copies of any determination on a claim for disability benefits, as well as any re-adjudications, from that agency as well as the records, including medical records, considered in adjudicating/re-adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 4. Thereafter, schedule the Veteran for an appropriate orthopaedic examination regarding his claim of service connection for residuals of two broken toes of the right foot. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests, including, but not necessarily limited to, x-rays, must be performed, and all findings reported in detail. The examiner is specifically requested to set forth the Veteran's current disabilities involving the right foot and/or toes of the right foot. If there are multiple diagnoses involving the toes of the right foot, the examiner should specifically opine as to the likely etiology of each disability. In so doing, the examiner is asked to opine as to whether any diagnosed right foot or toe condition, at least as likely as not (50 percent probability or greater) began in or is related to his active service, including as a residual of the documented in-service injury to the toes of the right foot. The examiner should consider the VA and private records which note the possibility of an old fracture, as well as other disabilities that cause foot problems such as diabetes and post-operative hammertoes; and, the STRs which document the injury in question, and note a possible fracture at that time, without any x-rays taken at that time. In this regard, the examiner should opine as to whether the Veteran's current disability of the right toes is the type of residual disability consistent with the Veteran's reported history. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative addressing all evidence received since the June 2012 SSOC; and they should be provided an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).